United States v. Malmin

272 F. 785, 1 V.I. 512, 1921 U.S. App. LEXIS 1683

• Court: Court of Appeals for the Third Circuit
• Decided: April 23, 1921
• Docket: No. 2693
• Status: Published

Opinions

WGOULEY, Circuit Judge.

The United States prays for a writ of mandamus directed to a judge oí a territorial coitrt absent from his district, commanding him to return and resume the duties of his office.

The averments of the petition, paraphrased and compressed, are as follows:

The Virgin Islands are territory of the United States, subject to the Constitution and such laws of the United States as are applicable thereto. The Congress, by Act of March 3, 1917, Ch. 171, Secs. 1 and 2 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3924J4A 3924J4E) provided:

“That * ' * * all military, civil, and judicial powers necessary to govern the West Indian Islands acquired from Denmark shall be vested in a Governor and in such person or persons as. the President may appoint, and shall be exercised in such manner as the President shall direct until Congress shall provide for the Government of such Islands. * *

"That until Congress shall otherwise provide, * * * local laws, in force and effect in said Islands on the seventeenth day of January, Nineteen hundred and seventeen, shall remain in force and effect in said Islands, and the same shall be administered by the civil officials and through the local judicial tribunals established in said Islands, respectively; and the orders, judgments, and decrees of said judicial tribunals shall be duly enforced. With the approval of the President, or under such rules and regulations as the President may prescribe, any of said laws may be repealed, altered, or amended by the Colonial Council having jurisdiction. The jurisdiction of the judicial tribunals of said Islands shall extend to all judicial proceedings and controversies in said Islands to which the United States or any citizen thereof may be a party. In all cases arising in the said West Indian Islands and now reviewable by the courts of Denmark, writs of error and appeals shall be to the Circuit Court of Appeals for the Third Circuit, and, except as provided in sections two hundred and thirty-nine and two hundred and forty of the Judicial Code, the judgments, orders, and decrees of such court shall be final in ali such cases.”

Pursuant to the power thus conferred, the President of the United States, on August 24, 1917, signed an Executive Order prescribing sundry rules, among which was the following:

“Repeals, Alterations, and Amendments of local laws of the Virgin Islands of the United States by Colonial Council having jurisdiction, shall be effective and enforced when, and to the extent, said Repeals, Alterations and Amendments are approved by the Governor of said Islands * * * the President reserves the right to disapprove and set aside any enactments of the Colonial Council.”

Pursuant to the Act of Congress and the Proclamation of the President, the Colonial Council of the Municipality of the Island of St. Croix, in May, 1920, adopted, and the Governor of the Virgin Islands approved, a code of laws. By Section 5 (a), Chapter 1 thereof, it was provided:

“Section 5 (a). There shall be appointed by the Governor two Judges for the District Court, one to'reside in each Municipality, and, each shall hold office, until otherwise directed by Congress or the President, during good behavior and who shall be removed only for cause involving moral turpitude.”

Under authority of this section of local laws, Joseph W. Oman, an officer of the United States Navy, and Governor of the Virgin Islands by appointment of the President, appointed Uucius J. M. Malinin Judge of the District Court of the Virgin Islands of the United States for the Municipality of St. Croix, as of June 12, 1920; formal notice thereof being conveyed to the appointee by the Acting Attorney General of the United States.

First qualifying, Lucius J. M. Malmin, on September 1, 1920, entered into the performance of the duties of his said office.

By Executive Order, dated the twelfth day of November, 1920, the President; in the exercise of the right reserved by the Executive Order previously cited, and under authority of the Act of Congress, approved March 3, 1917, revoked and set aside Section 5 (a), Chapter 1 of the Colonial Code for the Municipality of St. c-roix, previously quoted. By force of this executive action, the United States asserts that all power to appoint a Judge of the District Court for the V irgin Islands, theretofore vested in the Governor, was rescinded. Continuing, it avers, that on the twentieth day of November, 1920, Lucius J. M. Mal-min, Judge as aforesaid, departed from the Virgin Islands for the United States, on business, it is alleged, incident to the welfare of the Islands. When at sea an officer of the steamship handed him a letter from Joseph W. Oman, Governor of the Islands, revoking his appointment as Judge of the‘ District Court for the Municipality of St. Croix and enclosing a check in full payment of his salary. Subsequently, Joseph W. Oman, Governor of the Islands, appointed as Judge of the said court one Frederick T. McKean, who at once assumed the duties of that office.

On these facts, and particularly on the one which concerns the revocation of Section 5 (a), Chapter 1 of the Colonial Code, the United States avers that on November 20, 1920, Joseph W. Oman, Governor of the Islands, was without authority in law to revoke the appointment of Lucius J. M. Malmin as Judge of the said District Court, that he was also without authority in law thereafter to appoint Frederick T. McKean as Judge of the said court, and that Frederick T. McKean is without warrant in law to hold the said office except in so far as he may be authorized under appointment by'virtue of Section 15 of the Colonial Code to act during the absence of the said Lucius J. M. Malmin.

Further averring it to be the duty of Lucius J. M. Malmin to return forthwith to the Virgin Islands and to resume the duties of his office in order that the purposes of his appointment shall be fulfilled by the completion of cases formally begun before him, and in order also that parties litigant may have their cases heard before the only judge warranted by law to hear and finally dispose of them, to the end that, if aggrieved by final judgments, they may have opportunity, under the laws of the United States, to apply to this appellate court for review of the same, the United, States prays this court to issue an alternative writ of mandamus, directed to Lucius J. M.'Malmin, Judge of the District Court of the Virgin Islands, commanding him to return forthwith to the Municipality of St. Croix and resume the duties of his office.

Lucius J. M. Malmin, the respondent, appeared gratis, and, waiving .the issue of an alternative writ, made answer by admitting all the facts averred in the Government’s petition and by submitting himself to the jurisdiction of this court. The United States demurred, to the respondent’s answer. Thus the cause is pleaded to issue, the issue being, whether a peremptory writ of mandamus shall be awarded or refused.

As we regard the case, it presents three questions: First, whether the facts warrant the extraordinary remedy of mandamus; second, whether this court has jurisdiction in any event to issue such process; .and third, if it has, when and to what end may it resort to its exercise.

[1,2] Before turning to the first question, it is important to note that this is not a case where one, claiming title to an office, comes into court as relator in a petition for mandamus and assails the title o E another. There is here no relator. The United States, the sovereign itself, is the petitioner, moving by the Attorney General, at Washington, not merely by the local District Attorney. The District Judge, a servant of the United States, is the respondent. The incumbent appointed to succeed him is not a party; nor in this action, where all essential facts are established and the title to the office is not in contest, and where the command of the court will be directed to the respondent alone, is the incumbent a necessary party. State ex rel. Leeds v. Atlantic City, 52 N. J. Law, 332, 338, 19 Atl. 780, 8 L. R. A. 697. It is also important to note that the object of the proceedings begun by the United States, is to invoke against the respondent, its servant, the exercise by this court of an extraordinary power, which, though always guarded by courts, is freely employed “to prevent disorder from a failure of justice.” Rex v. Baker, 3 Burr. 1265.

[3, 4] In considering whether the facts are such as to invoke the remedy sought, it is to be observed that ordinarily a writ of mandamus is not demandable, as a matter of right, but is awarded in the discretion of the court. People v. Police Com’rs, 107 N. Y. 235, 13 N. E. 920; People v. Croton Aqueduct Board, 49 Barb. (N. Y.) 259; Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580; Bedford v. Wingfield, 27 Grat. (Va.) 333. But where a clear legal right is shown, as where one lawfully in office has been ousted therefrom without authority, and where it is in the public interest and conducive to peace and good government that he be speedily restored, mandamus will lie. State v. Baldwin, 77 Ohio St. 532, 83 N. E. 907, 19 L. R. A. (N. S.) 49, 12 Arm. Cas. 10, with extended notes. With this in mind, courts regard their discretion as greatly contracted; indeed, it has been said, that in such case, the court, having authority to issue the writ, has no discretion at all. Illinois Central R. Co. v. People, 143 Ill. 434, 33 N. E. 173, 19 L. R. A. 119.

[5] Addressing our discretion to the case, however, we find present the first requisite for the remedy of mandamus — a state of facts wholly undisputed, raising only a question of law. Otherwise the remedy would be by quo warranto. Howard v. Gage, 6 Mass. 462; In re Kenny, 52 App. Div. 385, 65 N. Y. Supp. 204; Adams v. Duffield, 4 Brews. (Pa.) 9.

The capital facts of the admitted situation on which the United States claims a legal right to the writ are these:

[6] Under the Colonial Code of the Virgin Islands, the Governor was vested with power to appoint a District judge. In the exercise of that power he appointed the respondent. Thereafter the section of the code which alone vested him with appointive power was repealed by the President. After its repeal, the Governor removed the respondent as Judge and appointed another. If the Governor ever had power of removal, it was only by force of Section. 5 (a), Chapter 1 of the Colonial Code. Similarly, his power of appointment was derived only from that section. When that section was repealed, it left him equally without power to remove one judge and to appoint another. As he did both these acts without sanction of law, they left both parties, the United States maintains, just where they were before, — the respondent as Judge with prima facie title to the office and the succeeding appointee without color of title.

[7-9] The law applicable to such situation is not uncertain. Admittedly, mandamus is not an appropriate process for testing title to public office. The appropriate process is quo warranto. Yet it is conceded that, with certain limitations, mandamus is an appropriate remedy to restore to office one lawfully in possession and unlawfully removed, Howard v. Gage, 6 Mass. 462; especially if it be a matter of public concern, Rex v. Baker, 3 Burr. 1265; Fuller v. Academic School, 6 Conn. 532; Burr v. Norton, 25 Conn. 103; Ransom v. Boston, 193 Mass. 537, 79 N. E. 823; State v. Baldwin, 77 Ohio St. 532, 83 N. E. 907, 19 L. R. A. (N. S.) 54, 55, 56, 12 Ann. Cas. 10. This rule extends, as here, to one summarily removed from office without notice or opportunity to be heard and in violation of law applicable to his office. People v. Keller, 158 N. Y. 187, 52 N. E. 1107; Geter v. Tobacco Inspection Com’rs, 1 Bay (S. C.) 354, 1 Am. Dec. 621. It restores the removed officer, not on a right conclusively established but on his showing of a clear prima facie title to the office. State v. Oates, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912; Harwood v. Marshall, 9 Md. 83. If, after removal of one with prima facie title, a successor be installed in the office, the right of the former to a writ of mandamus depends on the occupancy of the office by the latter, that is, whether it be with color of title or without color of title. If he succeed to the' office with color of title, there arises a dispute as to title, triable only by 'writ of quo warranto. This is on the theory that the office is filled, or in other words, that there is a de facto officer. “In such cases, the reason for the rule makes the fullness of the office de facto the test” as to whether quo warranto or mandamus lies. The rule therefore is:

“That quo warranto and not mandamus is the remedy in all cases in which an office is full de facto, excepting only those cases in which the office has been filled by proceedings palpably without legal warrant.” State ex rel. Leeds v. Atlantic City, 52 N. J. Law, 332, 336, 19 Atl. 780, 781 (8 L. R. A. 697), and cases cited.

In cases within this pertinent exception, the reason for the rule is wanting, that is, in “cases in which the facts before the court, or within its judicial knowledge, show that the relator was in office de jure et de facto, and that the defendant, while claiming to be in de facto, can make no claim to be in de jure.” Then the office is not de facto full against the one lawfully appointed and unlawfully removed, for “in contemplation of law, his title to the office de jure draws to it the possession de facto.” State ex rel. Leeds v. Atlantic City, 52 N. J. Law, 332, 337, 19 Atl. 780, 782 (8 L. R. A. 697); People v. Scrugham, 20 Barb. (N. Y.) 302; State v. Hempstead, 83 Conn. 554, 78 Atl. 442, Ann. Cas. 1912A, 927; Metsker v. Neally, 41 Kan. 122, 21 Pac. 206, 13 Am. St. Rep. 269.

Applying these familiar piiuciples of the law of mandamus to the undisputed facts before us, it appears that the United States has shown in its servant, the respondent, a prima facie title to the office, and has shown also that the succeeding appointee is without color of title, and that, accordingly, our answer to the first question — whether the facts warrant the extraordinary remedy of mandamus — -must be in the affirmative.

[10] In thus finding in the United States a right to a writ of mandamus on the facts shown — the main question in the case as we regard it — we wish to make it clear that the scope of our decision is no broader than the facts on-which it is based. People v. Gilmer, 10 Ill. (5 Gilman) 242. It is conclusive only of the Government’s right to ask us to compel its servant, under his prima, facie title, to return to his jurisdiction and to perform the dttlies of his office. It is not conclusive of subsequent proceedings, if any he had, on different facts to test the title to the office. State v. Oates, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912. Nor does it determine any question of the tenure of the respondent’s office, the power thereafter to remove him and to appoint another or where such power, if any, resides.

[11] Answer to the second question — whether this court has jurisdiction in any event to issue such process — is made by Section 262 of the judicial Code (Comp. St. § 1239), which says:

“The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute. * *

This provision has been construed to include the writ of mandamus. Barber Asphalt Co. v. Morris, infra; Minnesota, etc., Co. v. Dowagiac Mfg. Co., infra.

[12] Answer to the third question — when and to what end may this court exercise its power to issue such writ — is likewise made by the same section of the Judicial Code when conferring upon Circuit Courts of Appeals “power to issue all writs not specifically provided for by statute” by prescribing — “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”

We are aware of no supervisory jurisdiction over District Courts conferred Upon Circuit Courts of Appeals, except in one or two specifically named matters, as in bankruptcy. Our jurisdiction over District Courts is therefore almost exclusively appellate. If this court has power to issue the writ of mandamus, it is only in aid of its appellate jurisdiction. That such power can be so exercised has been decided. Barber Asphalt Co. v. Morris, 132 Fed. 945, 66 C. C. A. 55, 67 L. R. A. 761; Minnesota, etc., Co. v. Dowagiac Mfg. Co., 126 Fed. 746, 61 C. C. A. 352; Dowagiac Mfg. Co. v. McSherry Mfg. Co., 155 Fed. 524, 84 C. C. A. 38, certiorari denied 195 U. S. 630, 25 Sup. Ct. 788, 49 ; Ex parte Chicago Title & Trust Co., 146 Fed. 742, 77 C. C. A. 408. See Life & Fire Insurance Co. v. Wilson, 8 Pet. 291, 8 L. Ed. 949; Life & Fire Insurance Co. v. Adams, 9 Pet. 571, 9 L. Ed. 233; McIntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420.

[13] There remains, therefore, only one question, — whether the instant case is such as to invoke the remedy of mandamus in aid of this court’s appellate jurisdiction.

The appellate jurisdiction of this court does not arise from prior invocation alone; it is continuously existeut. Matters which disturb that jurisdiction, either before or after it is invoked, are, therefore, cognizable here. If the absence of a lawfully appointed judge of a District Court, from which appeals lie to this court, thereby affects the right of litigants to take appeals and the right of 'this court to entertain them, confessedly this court has power to restore the orderly proceedings of the trial court by commanding the absent judge to return and transact its business. So also, when the District Court is occupied by a stranger exercising the-functions of judge without color of title, questions of the validity of judgments he enters and of appeals taken may conceivably arise; yet they would arise in a way which would leave this court helpless to correct the fundamental trouble; for, unquestionably, the right of the incumbent — even if claimed under color of title to the office — to enter valid judgments could not be collaterally attacked and tried out on appeal, Hagner v. Heyberger, 7 Watts & S. (Pa.) 104, 105, 42 Am. Dec. 220, and the right of the public to a properly constituted trial court from which appeals can validly lie could not be asserted or brought about in proceedings on appeal or by writ of error.

It may be that valid appeals would lie from and valid writs of error could be directed to a de facto judge with color of title to the office; but as we are deciding this case on the theory of law that the respondent’s title to the office de jure draws to it the possession de facto, there is nothing left in the District Court (saving the effect of a possible ad interim appointment) on which the appellate jurisdiction of this court can validly operate. Therefore, it becomes essential to the appellate jurisdiction of this court that orderly proceedings in the District Court of the Virgin Islands be restored and to that end we shall enter an order, in the form prayed by the United States, that—

“a writ of peremptory mandamus issue, directed to Lucius J. M. Malmin, Judge of tlie District Court of tlie United States, commanding him to proceed forth with to the Municipality of St. Croix, and there enter upon, undertake and perform the duties appertaining to the office of Judge of the District Court of the Virgin Islands aforesaid, so long as he shall continue hereafter lawfully to hold the office of Judge of the District Court aforesaid.”